This motion to suppress the B.A.C. (Blood Alcohol Content breathalyzer test) and Standardized Field Sobriety Test (“S.F.S.T.”) results of Defendant John Michael McDonald (“McDonald”), conducted on 24 November 2011 in the Territory, came on regularly before the court on 16 February 2012. Testimony was presented by Public Safety Officers Leapai (“Leapai”) and Parker (“Parker”), and the Defendant’s wife, Mrs. McDonald.

From that testimony the Court finds the following facts. At approximately 1:30 A.M. on 24 November 2011, a police trainee accompanied Leapai at or near the village of Nuuuli; both were patrolling the roadway heading from the Lion’s Park area towards the intersection with the main highway in a police unit. Leapai noticed that the tail-lights of the vehicle ahead of his unit were not illuminated. Subsequently he observed the vehicle [**2**] swerve out of its lane before reaching the intersection and again swerving out of its lane upon entering, east bound, the main highway. Leapai pulled over that vehicle shortly thereafter at or near the parking lot of the K-2 Store. Leapai approached the vehicle’s driver, whom he identified in court as McDonald, and advised him as to the reason for the traffic stop. While speaking with McDonald, Leapai observed that his eyes were red and detected an odor of alcohol on his breath. Leapai asked McDonald if he had consumed an alcoholic beverage and McDonald responded he had only consumed 2 beers at a party earlier. Leapai asked McDonald to step out of the vehicle and then advised him he would call another police officer to the scene to determine if McDonald could safely continue to drive.

Soon thereafter Officer Parker arrived on the scene. Parker is a certified D.U.I. Officer, trained to administer and evaluate S.F.S.T.s and breathalyzer tests. Parker testified that upon arriving at the scene of the traffic stop, and after being briefed by Leapai as to what had occurred before Parker’s arrival, Parker noticed that McDonald had red, watery eyes and detected an odor of alcohol coming from his person. Parker re-advised McDonald as to the basis for the stop and asked McDonald if he had been drinking. McDonald responded that yes, he had been drinking earlier and had consumed 4-6 Steinlager beers. Again Parker noticed the odor of alcohol on McDonald’s breath, [**3**] and observed that during this conversation McDonald was swaying back and forth and leaning back against the car to maintain his balance. When asked for identification, McDonald also had difficulty in pulling out his wallet and producing his driver’s license.

Parker next attempted to question McDonald’s wife, who was in the passenger seat of McDonald’s vehicle, but she was unresponsive. Parker noticed she appeared to be angry or upset and was crying. Leapai remained at the scene during this period and his trainee partner remained inside the police unit during the stop.

Parker next advised McDonald about conducting the S.F.S.T.s and obtained McDonald’s consent to perform the tests. Parker, evaluating the traffic stop scene as both poorly-lit and not presenting a level ‘floor’ for conducting the tests, explained to McDonald that he would transport McDonald to the nearby Department of Public Safety Substation (“Substation West”) to conduct the tests. Parker also informed McDonald he was not under arrest at that time. On cross examination and redirect, Parker testified he was a 5-year veteran of the Department of Public Safety, having conducted 50-60 D.U.I. investigations and/or arrests. He stated that some S.F.S.T.s were conducted at the scene of the traffic stop if they could be safely performed there, but if not, the driver would be transported back to the [**4**] police station to conduct the S.F.S.T.s there. Parker also stated that McDonald gave him consent to drive McDonald’s car to Substation West, with McDonald seated behind Parker in the backseat, and Mrs. McDonald seated in the front passenger’s seat. Leapai followed in Parker’s unit with Leapai’s trainee partner driving Leapai’s unit. At Substation West, McDonald was escorted inside the police station where he performed and failed the S.F.S.T.s, was formally arrested for D.U.I., advised of his Miranda rights, and opted to perform a breathalyzer test.

Mrs. McDonald testified that at the scene of the traffic stop adjacent businesses, including Talofa Video and the Nuuuli Shopping Center, had well-lit, level parking areas where the S.F.S.T.s could have been promptly performed. She also stated that the transport time from the stop scene to Substation West was no more than 5 minutes in duration.

ISSUES

McDonald contends that because Parker did not personally observe him operating his vehicle on the roadway, Parker could not lawfully arrest him for D.U.I. Further, McDonald argues that because his vehicle was stopped for mechanical defects, his detention upon suspicion of D.U.I. was unreasonable. Finally, McDonald contends that he was taken into police custody without probable cause, thereby rendering all subsequent evidence obtained inadmissible in court. [**5**]

DISCUSSION

Recently this Court issued an Opinion and Order suppressing S.F.S.T.s and breathalyzer test results in Am. Samoa Gov’t. v. Miscoi, UTC Nos. 286246 and 286247 (slip op. (Dist. Ct. March 14, 2012), involving several facts not facially dissimilar to many of those presented in this case.

[1] In deciding the issues presented in this case, the Court adopts its reasoning and caselaw citations used in Miscoi and will frequently reference it.

[1, 2] With respect to McDonald’s first issue, this Court has repeatedly ruled in bench decisions in cases presenting similar facts that a brief detention of a motorist at a traffic stop while a trained and certified D.U.I. police officer is promptly brought to the stop scene does not on its face create an unreasonable seizure of the motorist. If the officer initiating the traffic stop has an articulable basis for initiating that stop under Whren v. U.S., 517 U.S. 806 (1996), the initial stop is constitutionally valid.After that traffic stop, if the officer develops a reasonable suspicion that the driver had [**6**] consumed alcohol or other drugs and might be intoxicated, a brief detention of the driver while a certified, trained D.U.I. police officer is promptly brought to the scene to take over the case development and evaluation of factors suggesting intoxication is also reasonable under the circumstances.

[3, 4]As this Court held in Miscoi, a brief transport of the driver from the traffic stop scene to a safe, public location to conduct S.F.S.T.s, when warranted by the unsafe conditions prevailing at the scene, does not generally turn the detention of the driver into an arrest.In the instant case, Parker briefly transported McDonald to Substation West, took him inside the police station, and conducted the “field” tests there. As this Court held in Miscoi, such practices effectively result in the driver being placed in police custody, and in the absence of probable cause for the officer to arrest, this seizure is no longer reasonable. Evidence obtained thereafter becomes inadmissible in court. Rev. Const. of Am. Samoa art. I, § 5.

[5]In this case, however, under a totality of the circumstances test, Officer Parker had probable cause to seize McDonald prior to transporting McDonald to Substation West. Officer Leapai observed, in addition to the tail-lights’ defective condition, two instances of unsafe driving by [**7**] McDonald. McDonald told Leapai he had consumed two beers, but changed his story to Officer Parker and admitted to consuming 4-6 Steinlagers. Parker observed McDonald at the stop to have red, watery eyes, and detected the odor of alcohol on his breath. In addition, McDonald was unable to maintain his balance standing outside his vehicle without using the vehicle for support. Further, McDonald exhibited difficulty in pulling out his wallet and presenting identification.

[6]Notwithstanding Parker’s statement to McDonald at the stop scene that he was not under arrest, there was probable cause to take McDonald into police custody immediately before his transport to Substation West. Because this seizure of McDonald was supported by probable cause, the subsequent results of the S.F.S.T.s and the breathalyzer test are admissible in court as evidence. See, generally, Pennsylvania v. Muniz, 496 U.S. 582 (1990); Miscoi, UTC Nos. 286246 & 286247.

CONCLUSION

In Miscoi, the police officer lacked probable cause to find and charge the driver at the scene of the traffic stop with being under the influence of intoxicating liquor rendering him incapable of safely driving (A.S.C.A. § 22.0707). Evidence obtained from Miscoi after being effectively placed in police custody at the Central Police Station was therefore inadmissible in court. Rev. Const. of Am. Samoa art. I, § 5. [**8**]

In the instant matter, Officer Parker did have probable cause at the scene of the traffic stop to find and charge McDonald with violating A.S.C.A. § 22.0707. The seizure of McDonald being a reasonable one supported by probable cause, his motion to suppress the test results of the S.F.S.T.s and the breathalyzer is denied. [2]

ORDER

So Ordered. Further, this matter is calendared for a pre-trial hearing on 10 April 2012 at 8:30 A.M.

[1] In the Miscoi case, Miscoi was stopped for speeding and had pulled over in a poorly-lit area. Because Miscoi exhibited some indicia of alcohol consumption at the scene of the stop, police officers subsequently transported Miscoi to the Central Police Station for continued S.F.S.T. and breathalyzer analysis. This Court ruled that under the totality of the circumstances, the police officers lacked the probable cause necessary to arrest Miscoi for D.U.I. at the scene of the stop. This Court further ruled that Miscoi’s subsequent seizure and transport to the Central Police Station was unreasonable, and therefore suppressed the S.F.S.T. and breathalyzer test results. Cf. REV. CONST. OF AM. SAMOA art. I, § 5.

[2] As more fully set forth in Miscoi, the present police practice of routinely transporting D.U.I. suspects from the traffic stop scene to the police station is facially suspect. Safer, quicker, and constitutionally permissible alternatives are readily available. The Department of Public Safety and the Office of the Attorney General are strongly admonished to review and revise this practice at their earliest opportunity.